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Case Laws
Showing 61 to 80 of 220 Records
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1991 (5) TMI 162 - CEGAT, NEW DELHI
Appeal - Pre-deposit of duty and penalty ... ... ... ... ..... tor and emphasise that the penalty imposed on shortage of goods is justified. 13. We have considered the submissions of both the sides. We observe that in so far as the demand of duty is concerned the prima facie case is in favour of the department and not the applicants. At this stage the balance of convenience also appears to be in favour of the department and not the applicant hence we reject the request in so far as the duty amount is concerned. In view of this position we do not want to interfere with the appropriation of Rs. 65,000/- and realisation of duty at this stage. However, in so far as the question of penalty is concerned we feel that the request of the appellant could be considered. We note that no submissions have been made with reference to the financial condition during the course of this hearing. However, looking to the totality of the facts and circumstances of the case, we waive the pre-deposit of the penalty in question during the pendency of the appeal.
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1991 (5) TMI 161 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... 84.65 was decided. He urged that since this decision was conclusive on the question, it should be followed and rings made of graphite, which too is a form of carbon, should be classified under Heading 68.01/16. Shri Lakshmi Kumaran rsquo s argument was that once the additional evidence sought to be brought on record through his Miscellaneous Application was taken on record, the rings being made of artificial graphite, their correct classification would be under Chapter 84 in view of the judgment of the Tribunal in Albright Morarji rsquo s case (Supra). 6. Having heard both sides and having given our earnest consideration to the matter, we think that the matter stands settled conclusively by the larger bench decision in Saurashtra Chemicals case (Supra) and the correct classification of the graphite wearing rings should be under Heading 68.01/16 of the Customs Tariff Act, 1975. Consequently the order of the Collector of Customs (Appeals) is set aside and the appeal is allowed.
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1991 (5) TMI 160 - CEGAT, NEW DELHI
Timber/wood of Burmese origin ... ... ... ... ..... that the goods are entirely exempt from payment of basic customs duty. The reliance placed by him on the following citations in support of the proposition that the benefit of more than one Notification can be extended to goods are not at all applicable to the facts of the present case (i) 1986 (25) E.L.T. 318 (ii) 1987 (31) E.L.T. 534 (iii) 1987 (12) ECR 546 (iv) 1987 (31) E.L.T. 736 (Tribunal) 1988 (16) ECR 440 (v) 1990 (47) E.L.T. 7 (vi) 1990 (47) E.L.T. 139 (vii) 1991 (53) E.L.T. 93 6. There is no quarrel with the proposition provided that the benefit of the Notifications can be extended to the goods. In this case as already set out above the benefit of all the three Notifications cannot be extended for the reasons already set out above - the goods do not satisfy the conditions stipulated at Sl. No. 226 of Notn. 95/85 as to their suffering levy of 10 basic duty in terms of Notn. 62/85-Cus. 7. In this view of the matter we uphold the impugned orders and dismiss the appeals.
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1991 (5) TMI 159 - CEGAT, NEW DELHI
... ...
... ... ..... immed milk is regenerated into liquid milk within the very premises of the factory, or when the Assistant Collector is satisfied that it is for lsquo use rsquo for regeneration of liquid milk..................... In our opinion, what was born as milk and re-born as skimmed milk powder would be entitled to exemption only when it is again re-born as liquid milk for consumption in the last stage of its journey from milk to milk and certainly lsquo not rsquo if it is ultimately re-born as ice-cream though on its journey to its destination it is incidentally liquefied on its way. 4. In view of the above observations of the High Court, and the reasons recorded in the judgment, it is clear that the respondents were not entitled to exemption from duty on Sweetened Flavoured Milk which was made out of regenerated liquid milk with the addition of sugar and flavour because the purpose of the exemption would then be defeated. In this view of the matter the appeal succeeds and is allowed.
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1991 (5) TMI 158 - CEGAT, NEW DELHI
Stay of redemption fine pending appeal ... ... ... ... ..... ery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal. 5. We have also looked into the merits of the case. Prima facie the applicants have a good case on merits. In view of the above discussion we feel that it is a fit case where the stay should be granted. Accordingly, we stay the impugned order in respect of sub-para (5) of para 14 of the order passed by the Collector of Central Excise, Bombay-I, and further order that during the pendency of the appeal the Revenue shall not pursue the recovery proceedings in the manner mentioned in their letter dated 5-2-1991. However, we are making it clear that if any other remedy is available to the revenue it is open to the Revenue to enforce B-11 bond, the Revenue is at liberty to do the same.
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1991 (5) TMI 157 - CEGAT, NEW DELHI
Refund - Set-off of duty ... ... ... ... ..... hemical rsquo s case is fully applicable to the facts of the present case. The appeal of the department against the order of Collector (Appeals) is liable to rejection on this account alone. The question of the claim being time-barred between the period 14-11-1978 and 20-11-1978 is erroneous because of the evidence placed before us that the respondents had intimated the authorities that they wanted to avail of the set-off, but the authorities chose not to take action on their request. 5. There is nothing in Notification No. 178/77 to show that it is subject to observance of the procedure prescribed under Rule 173K. In these circumstances, the view canvassed before us in the appeal that the respondents should have observed the procedure prescribed under Rule 173K is erroneous. We accordingly reject the appeal of the department and direct that the consequential refund admissible to the respondents under the Rules should be sanctioned and paid expeditiously, if not already done.
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1991 (5) TMI 156 - CEGAT, MADRAS
Modvat credit ... ... ... ... ..... r this purpose they could have produced necessary evidence from the Suppliers and in the normal course it should have been possible for the appellants to produce the correlating evidence establishing the same goods which were returned to the suppliers for reprocessing have been received back after reprocessing. The learned Counsel for the appellants expressed his inability to furnish any evidence to correlate the goods sent out from the appellants factory with the goods which had been received back after reprocessing. If they had been able to produce correlating evidence as mentioned above we could have considered their case whether on clearance from the factory when the reprocessing was done the goods can be taken to be duty paid for the purpose of consideration of Modvat credit to be given on return of the reprocessed goods in the factory. In view of above, we, therefore, hold that the appellants have not made out a case for credit of duty. We, therefore dismiss the appeal.
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1991 (5) TMI 155 - CEGAT, NEW DELHI
Jurisdiction ... ... ... ... ..... aged in Section 129B of the Act. 4. The following authorities have laid down that against an interim order no reference lies - (1) The Tribunal rsquo s decision rendered by a 5-Member Bench in Collector of Central Excise, Meerut and Others v. Lalchand Anand and Others -1986 (23) E.L.T. 530 (2) The Allahabad High Court rsquo s judgment in Collector of Central Excise, Meerut v. President, CEGAT and Another - 1987 (32) E.L.T. 642, which makes a reference to the decision of the Larger Bench of the Tribunal and (3) The Tribunal rsquo s decision in Bengal Industrial Gases (Bihar) Ltd. v. CCE, Calcutta -1987 (31) E.L.T. 790. Though these decisions are with reference to the provisions of the Central Excises and Salt Act, their ratio is applicable to reference applications filed under the Customs Act also since the provisions in both Acts are similar. As such, no reference lies against the miscellaneous order of the Tribunal in this case and consequently, the application is dismissed.
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1991 (5) TMI 154 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... as all the more onerous in view of the fact that the appellants were already manufacturing soap with the aid of power and were paying duty thereon and they were about to manufacture soap without the aid of power or steam which was exempt from duty. Risk to revenue was inherent in the situation and the department had to take all steps considered necessary to obviate that risk. It would have been an entirely different matter if the appellants had altogether suppressed from the department the fact of manufacture of soap without the aid of power or steam and its clearance without payment of duty in terms of the exemption notification. Such is not the case herein. Applying the ratio of the two Supreme Court judgments referred to earlier, it must be held that there was no suppression of material facts on the part of the appellants and, on this short ground alone, the demand for duty and penalty have to be set aside and the appeal allowed with consequential relief to the appellants.
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1991 (5) TMI 153 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... e Central Excises Act, 1944, I am of the opinion that in view of the peculiar nature of the patent and proprietary medicines labelling is a process incidental to or ancillary to the completion of manufacture of that product. From that point of view in my opinion the imposition of levy in this case was valid. Unlabelled medicines are not and cannot be described as patent and proprietary medicines. Mr. Dutta rsquo s second contention therefore fails. In view of the above discussion, we are of the view that Melalite Cream is a medical preparation and cannot be treated as a cosmetic or toilet preparation. Classification under erstwhile Tariff up to 28th February, 1986 under Tariff Item 14E and classification after 28th February, 1986 under the present Tariff under Heading 3003.19 is in order. We do not find any infirmity in the orders passed by the lower authorities. We uphold the findings of the Collector of Central Excise (Appeals). The appeal filed by the revenue is dismissed.
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1991 (5) TMI 152 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... e Central Excises Act, 1944, I am of the opinion that in view of the peculiar nature of the patent and proprietary medicines labelling is a process incidental to or ancillary to the completion of manufacture of that product. From that point of view in my opinion the imposition of levy in this case was valid. Unlabelled medicines are not and cannot be described as patent and proprietary medicines. Mr. Dutta rsquo s second contention therefore fails. In view of the above discussion, we are of the view that Melalite Cream is a medical preparation and cannot be treated as a cosmetic or toilet preparation. Classification under erstwhile Tariff up to 28th February, 1986 under Tariff Item 14E and classification after 28th February, 1986 under the present Tariff under Heading 3003.19 is in order. We do not find any infirmity in the orders passed by the lower authorities. We uphold the findings of the Collector of Central Excise (Appeals). The appeal filed by the revenue is dismissed.
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1991 (5) TMI 151 - CEGAT, MADRAS
Modvat credit ... ... ... ... ..... passes. In any case if the assessees fail to correlate the credit taken with the Gate passes under which the goods which entered the factory, the authorities are free to take action under Rule 57-I of the Central Excise Rules for recovery of the credit wrongly taken. We do not see as to how the interests of the Revenue are prejudiced if the assessees choose to take the credit after a lapse of time after the date of receipt of the goods inside the factory. It is in fact the assessees who will be foregoing the benefit of the credit in case they choose to take the credit after a lapse of time as they will be deprived of the benefit of the MODVAT Credit due till they take the credit. In view of the above in the absence of any specific provision in the Central Excise Rules in regard to time limit for taking MODVAT Credit, we hold that the plea of the Revenue is not maintainable in law. We, therefore, uphold the order of the learned lower appellate authority and dismiss the appeal.
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1991 (5) TMI 150 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... was issued on 22-5-1986, that is, after Rule 9(2) was amended on 14-1-1981 by Ministry of Finance Notification No. 3/81-C.E. incorporating the limitation specified in Section 11A of the Act into the Rule. Having regard to these circumstances, there is no mistake apparent from the record which needs to be rectified. 4. Incidentally, we observe that the very issue raised by the Collector in the present application was considered by the Tribunal in the case of Meghamani Dyes and Intermediates v. CCE, Baroda, Order No. 926/90-C, dated 16-8-1990 wherein it has been held that it was not merely the limitation specified under Section 11A of the Act but the entire scheme of Section 11A has been incorporated into Rule 9(2) including the specification of the authorities by whom notice of demand may be issued for the normal period of limitation and the extended period of limitation. 5. In the above view of the matter, there is no merit in the application which is consequently dismissed.
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1991 (5) TMI 149 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... d before the Bench of judgment of the Calcutta High Court reported in AIR 1959 Calcutta 219 to support his proposition that the date of communication is the relevant date. According to the learned DR the claim is time-barred as the relevant date for the purpose of appeals is the date of adjustment of duty after finalisation of the assessment which was made on 31-3-1984. 6. We see great force in the contentions of the learned Counsel for the appellants - though the assessment was finalised and duty adjusted on 31-3-1984, the fact of finalisation was communicated and came to the knowledge of the appellants only on 19-11-1984 and, therefore, it is from that date that limitation will have to be computed for the purpose of refund claim. The refund claim has been filed within the period of six months from the date of communication of final assessment and, therefore, is within time. Accordingly we set aside the impugned order and allow the appeals, with consequential relief, if any.
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1991 (5) TMI 148 - CEGAT, NEW DELHI
Valuation - Special Discount ... ... ... ... ..... achine, i.e. US 34,000 in my view could be assessed. 6. On the ratio of the decision quoted above, we are of the view that the special discount of 4 frac12 which was extended by the supplier to the appellants on account of their long and cordial business dealings during a span of over 25 years and would not have been available to all unconnected buyers Hence it has to be held that it was not admissible for the determination of the assessable value under Section 14(l)(a) of the Customs Act, 1962. 7. In support of her case, the learned Advocate for the appellants Smt. P. Sitaraman had referred to the Bombay High Court decision in the case of Prem Bhai Chibba Bhai Tongal reported in 1987 (13) ECR 1109 (Bombay). We find that this decision is not relevant to the issue before us, since in that case the petitioners had challenged the determination of the value of their imports under Section 14(l)(b) of the Customs Act, 1962. 8. In view of the above discussion the appeal is rejected.
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1991 (5) TMI 147 - CEGAT, NEW DELHI
... ...
... ... ..... ollector had concluded that the notification intended to give benefit only to such plastic film capacitors which were to be used in electronic industry. There is no such criteria laid down in the notification. If it were so, then the Govt. would have incorporated it in the notification. More should not be read in the notification by applying materials which are not part of notification as they would become extraneous and make the notification otiose and nugatory. The Supreme Court has clearly laid down the law as stated in the cases of Hemraj Gordhandas, Aluminium Corporation, TISCO (supra) referred to by the appellants, which is now well settled propositions. Therefore, the findings of the lower authorities are not sustainable and they require to be set aside. The appellants are required to amend the Bond given to the Asstt. Collector and produce the end-use certificate and follow such other conditions as are stipulated in the notification in question. The appeal is allowed.
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1991 (5) TMI 146 - CEGAT, MADRAS
Imports of parts on different dates to be assessed individually and not in entirety ... ... ... ... ..... ose of Import Policy consumption goods which can directly satisfy the human needs without further processing. Before parting with this case, I should like to add that it is well settled proposition of law and canons of interpretation that if a Policy is capable of two different interpretations in a given context, the benefit of the same should go to the importer or the assessee as the case may be. Therefore, on consideration of the entire evidence on record and for the reasons set out above, I am inclined to think that the import cannot be said to be in contravention of the law and in my view the goods imported would be covered by the REP licence produced by the appellant. As I mentioned earlier, when there is no doubt with reference to the applicability of the licence to the goods in question vis-a-vis the relevant provisions of the Policy the benefit of the same should be given to the importer. In this view of the matter, I set aside the impugned order and allow the appeal.
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1991 (5) TMI 145 - CEGAT, NEW DELHI
Durability - Double taxation ... ... ... ... ..... on the ratio of the decision of the Supreme Court in the case of M/s. Empire Industries Ltd, and others v. U.O.I. 1985 (20) E.L.T. 179 (SC) 1985 ECR 1169 it was held that even if it was assumed that aluminium wires were by themselves a finished item of electric wires and cables and they were a distinct product from AAC and ACSR conductors, since the proforma credit procedure under Rule 56A applied to Item 33B and admittedly both aluminium wires and conductors fell under the same Tariff sub-item 33B(ii) lsquo All others rsquo it was not permissible for the department to collect and retain the full duty twice under the same sub-item. On the ratio of these decisions it has to be held that duty having been recovered at the final stage on aluminium conductors manufactured by the respondents, no duty was recoverable on aluminium wires manufactured and removed for captive consumption for the manufacture of conductors. 10. In view of the foregoing, the appeals fail and are dismissed.
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1991 (5) TMI 144 - CEGAT, NEW DELHI
... ...
... ... ..... and strictly follow the decision of the CEGAT which is referred to hereinabove. ldquo 6. Accordingly, petition succeeds and the impugned order passed by the Assistant Collector, Central Excise, Thane on April 27,1989 is set aside and the matter is remitted back to the Assistant Collector for fresh disposal in view of the decision recorded by CEGAT in 1990 (47) E.L.T. 610. The Assistant Collector is directed to pass final order on the refund application and pay the refund amount on or before December 31,1990. In the circumstances of the case, there will be no order as to costs. rdquo 6. In the matter before us, there is no unjust enrichment. In view of the above discussions we order the Collector to implement Tribunal rsquo s Order No. 34-36/90-B1 dated 5th March, 1990 on or before 23rd May, 1991 and report compliance to the Tribunal. 7. The matter to come up for mention on 27th May, 1991, for disposal of this application finally. A copy of this order should be supplied Dasti.
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1991 (5) TMI 143 - CEGAT, NEW DELHI
Demand - Jurisdiction ... ... ... ... ..... ess. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Service of notice, under the 1961 Act, is not a condition precedent to conferment of jurisdiction on the Income-tax Officer. It is a condition precedent only to the making of the order of the assessment. In the case of Section 11A of the Central Excises and Salt Act, as we have noted earlier, the requirement is service of notice within the prescribed period of limitation and the notice giving authority should be the authority specified by the section which, in cases of invocation of the extended period of limitation, is the Collector of Central Excise. 16. In the above view of the matter, I agree with the conclusion of brother Shri Peeran that the notice in the instant case was not a valid notice in terms of Section 11A(1) of the Central Excises and Salt Act and that, as a consequence, the impugned order is to be set aside and the appeal allowed. Ordered accordingly.
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